Kristin Evju
Thesis Submitted for the Degree of
Master of Philosophy in Indigenous Studies
Faculty of Humanities, Social Sciences and Education Norway
Autumn 2012
"A conflict between two disparate cultures."
Indigenous Agency and Legal Narratives in the United States.
The Case of Lyng v. Northwest Indian Cemetery
Protective Association.
“A conflict between two disparate cultures.”
Indigenous Agency and Legal Narratives in the United States.
The case of Lyng v. Northwest Indian Cemetery Protective Association.
By
Kristin Evju
Master of Philosophy in Indigenous Studies
Faculty of Humanities, Social Sciences and Education University of Tromsø
Norway Autumn 2012
Supervised by
Christine Smith-Simonsen, PostDoc, Department of History and Religious Studies
To Jane, my greatest source of inspiration
Acknowledgements
This thesis would never have reached its ending point if it had not been for a number of people helping me along the way.
To my supervisor Christine. Thank you for your patience and unwavering confidence in me. I greatly appreciate our conversations, which always helped me find my path again when I thought it was lost. Thank you for telling me to breathe.
To Bjørg, Rachel, Per, Torjer, and everyone else at the Center for Sámi Studies. Thank you all for this unique and incredible experience. You have created such a welcoming, open learning environment for me and for my class. Thank you for your kindness and generosity.
I am also indebted to the Center for enabling me to spend time in Montana, gathering invaluable information. I took more away from that stay than I ever would have imagined.
To Dean and Shanley for taking care of me in Missoula. Thank you for introducing me to your home and your people.
Thank you to the members of the Confederated Salish and Kootenai Tribes, for giving a stranger a small glimpse of your world.
Thank you to my classmates for all of your contributions, in and outside of class. You have been great teachers as well as fellow students and I value the stories you have told me.
Thank you to all of my incredible friends, both those in Tromsø and elsewhere.
Shanley, you get your own mention too. I can honestly say I would never have been able to do this if you had not been here this past year. I will miss all of our discussions, airing of frustrations, long lunches, long coffee breaks, hours of plotting, and small adventures.
Finally, thank you to my wonderful family for always believing in me, always supporting me, and always making me feel like Evju is the best place in the world to come home to.
Abstract
In 1988, the United States Supreme Court denied the Yurok, Karuk, and Tolowa tribes constitutional protection of ‘High Country,’ a sacred area in danger of being destroyed by the government. The dispute, known as Lyng v. Northwest Indian Cemetery Protective Association, became infamous for its detrimental effects on legal protection of Native American religious beliefs and practices.
This thesis explores the space of Native American participation in the legal landscape of the U.S by framing it in a postcolonial discourse. The Lyng proceedings serve an interesting starting point for an analysis of how Native American litigants must navigate the courtroom and the law by adhering to the rules and customs of an institution based on an Anglo- American, and ultimately, colonial heritage. The language of the Supreme Court reveals a low degree of understanding of, or respect for, Native American worldviews. Prejudices and misconceptions of Native religions are masked by an abstract level of reasoning and a purported concern for the rights of the government. This negates indigenous faiths as equal to Judeo-Christians under the law, because of the first groups’ often-unfamiliar appearance and worldviews. Consequently, many tribes have sought rights protection outside of the courtroom. Since 1988, numerous steps haven been made to ensure that the spiritual beliefs and practices of Native Americans are secured against private or governmental interests. New laws, practices, and public awareness are contributing to right past wrongs, away from the shifting support of the U.S. courts. Nevertheless, this form of active agency is important in its impact on the postcolonial landscape of law, as well as on the government and the image of the Native in the United States.
Table of Content
CHAPTER 1 - THE LYNG SUPREME COURT DECISION AS A STARTING POINT FOR
DISCUSSING POSTCOLONIAL LEGALITIES. 1
1.1 INTRODUCTION 1
1.2 THE CONTEXT FOR PROVIDING SCOPE OF THE THESIS 2 1.3 THE CONTEXT FOR PROVIDING RESEARCH QUESTIONS 3
1.4 RESEARCH QUESTIONS 6
1.5 HIGHLIGHTING THE THEORETICAL TOOLS AND CONCEPTS 7
1.5.1 POSTCOLONIAL THEORY 7
1.5.2 IMPORTANT CONCEPTS 8
1.5.3 AN INTRODUCTION TO BASIC TERMS 9
1.6 METHODOLOGICAL POINTS AND ETHICAL CONCERNS 10
1.7 A CHAPTER OUTLINE 13
CHAPTER 2: A THEORETICAL APPROACH TO LYNG; OVERARCHING THEORIES
AND HISTORIES. 15
2.1 POSTCOLONIAL THEORY 15
2.1.1OVERVIEW OF THEORETICAL FIELD 15
2.1.2 INDIGENEITY AND POSTCOLONIAL THEORY 17
2.1.3 THE PROBLEMATIC NATURE OF POSTCOLONIAL THEORY 18
2.1.4 POSTCOLONIALITY AND THE LAW 20
2.2 FEDERAL INDIAN LAW 22
2.2.1 WHERE DOES FEDERAL INDIAN LAW COME FROM? 22
2.2.2 THE HISTORICAL PERIODS OF FEDERAL INDIAN LAW AND POLICY 24
2.2.3 SELF-DETERMINATION 27
2.3 CONCLUSION 28
CHAPTER 3 – THE AMERICAN COURTROOM AS A MEETING POINT FOR FEDERAL
INDIAN LAW POLICIES AND RELIGIOUS RIGHTS. 29
3.1 THE HISTORY OF FEDERAL INDIAN LAW IN THE UNITED STATES 29 3.1.1 HISTORICAL TURNING POINTS FOR NATIVE AMERICANS IN U.S. LAW 29 3.1.2 THE RELATIONSHIP BETWEEN INDIAN COUNTRY AND THE U.S. JUDICIAL SYSTEM IN A
CONTEMPORARY CONTEXT 32
3.2 A SHORT OVERVIEW OF NATIVE AMERICAN RELIGIONS 34
3.2.1 NORTH AMERICAN SPIRITUALITIES 34
3.2.2 THE SPIRITUAL WORLD OF THE YUROK, KARUK, AND TOLOWA TRIBES 36 3.3 LYNG V. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION: THROUGH THE U.S.
COURT SYSTEM 38
3.3.1 THE BEGINNING OF THE DISPUTE 38
3.3.2 THE HIGH COUNTRY DISPUTE IN THE LOWER COURTS 39
3.3.3 THE RULING OF THE SUPREME COURT 41
3.3.4 THE DISSENTING OPINION OF THE SUPREME COURT 43
3.4 CONCLUSION 44
CHAPTER 4 – THE JUDICIAL TREATMENT OF NATIVE AMERICAN SPIRITUALITY IN LYNG V. NORTHWEST INDIAN CEMETERY PROTECTIVE ASSOCIATION. 45
4.1 THE MEETING OF THE INDIGENOUS AND THE LAW 45
4.1.1. NATIVE AMERICANS IN A POSTCOLONIAL UNITED STATES 45
4.1.2 THE SUPREME COURT’S HANDLING OF RELIGIOUS RIGHTS UNDER THE CONSTITUTION 47 4.1.3 PROVIDING CONTEXT TO A LEGAL DECISION: THE ANOMALOUS YET SIGNIFICANT STATUS OF
LYNG IN THE AMERICAN LEGAL NARRATIVE 49
4.2 INDIGENEITY AND THE COURT 51
4.2.1 REPRESENTATIONS OF DIFFERENCE IN A LEGAL SPACE 51
4.2.2 SACRED PLACES AND SECRET SITES 54
4.3 THE ARGUMENTS OF THE SUPREME COURT MAJORITY 56
4.3.1 INTERNAL VERSUS EXTERNAL 57
4.3.2 THE INDIVIDUAL VERSUS THE GROUP 58
4.3.3 LANGUAGE OF THE COURT AS A SOURCE OF POWER 59
4.3.4 LAND AS PROPERTY, LAND AS CULTURE 60
4.3.5 THE SUPREME COURT’S FAILURE TO PROTECT A TRIBAL RELIGION FROM DESTRUCTION 62
4.4 CONCLUSION 63
CHAPTER 5 – RELIGIOUS RIGHTS AFTER LYNG; NATIVE AMERICAN AGENCY IN A
POSTCOLONIAL UNITED STATES. 65
5.1 THE AFTERMATH OF LYNG V. NORTHWEST INDIAN CPA 65 5.1.1. THE DEFEAT OF CONGRESSIONAL PROTECTION OF NATIVE RIGHTS 65
5.1.2 ANOTHER JUDICIAL REJECTION OF RELIGIOUS FREEDOM 67
5.2 ARE NATIVE AMERICAN RELIGIONS PROTECTED BY THE CONSTITUTION? 69
5.2.1. HISTORICAL DISADVANTAGES 69
5.2.2 CONFLICTING VIEWS ON THE AGENCY OF THE REHNQUIST COURT 70
5.2.3 THE CONSTRUCTION OF LAND AS PROPERTY 72
5.3 CHANGING THE NARRATIVE ON LEGAL TREATMENT OF INDIGENOUS RELIGIONS 74 5.3.1 LEGISLATIVE AND EXECUTIVE MEASURES TO COMBAT THE EFFECTS OF LYNG 74
5.3.2 THE ROAD TO SELF-DETERMINATION 75
5.4 NATIVE AMERICAN AGENCY AND LEGAL THEORY; RECLAIMING RIGHTS WHILE CREATING
NEW DISCOURSES 76
5.4.1 TRIBAL JUSTICE SYSTEM AS COUNTERWEIGHT 76
5.4.2 SHOULD TRIBES ABANDON THE COURTS? 77
5.5 CONCLUSION 79
CHAPTER 6 - CONCLUSIVE REMARKS AND AFTERTHOUGHTS 81
6.1 THE SUPREME COURT’S TREATMENT OF NATIVE RELIGIONS 81 6.2 THE COLONIAL STRUCTURES OF INDIGENOUS PARTICIPATION IN A LEGAL NARRATIVE 82 6.3 THE SEARCH FOR NATIVE AMERICAN AGENCY THROUGH POSTCOLONIAL USA 83
THESIS BIBLIOGRAPHY: 85
Chapter 1 - The Lyng Supreme Court decision as a starting point for discussing postcolonial legalities.
“This case […] represents yet another stress point in the longstanding conflict between two disparate cultures – the dominant Western culture, which views land in terms of ownership and use, and that of Native Americans, in which concepts of private property are not only alien, but contrary to a belief system that holds land sacred.”1
1.1 Introduction
In April of 1988 the United States Supreme Court handed out its ruling in the case of Lyng v.
Northwest Indian Protection Cemetery Association.2 It rejected constitutional protection to an area of sacred lands in Northern California against a government development plan. Three Native American tribes were denied any support from the judiciary against the probable destruction of High Country, a sacred tribal place on government land and under government control. Tribal members, indigenous rights activists, and legal scholars of the field were shocked. How could the court refute their claims to religious freedom under the highest law of the land when the welfare of the tribal spirituality was at stake?
This question is the impetus for the thesis, which takes the relationship between the Supreme Court and Native American tribes as a starting point for putting a whole array of questions on the relationship between the government and its indigenous people in contemporary USA to the test. The empirical focus of this investigation is the Supreme Court case mentioned above, Lyng v. Northwest Indian Cemetery Protective Association. It is an interesting dispute in itself for what it reveals of the inherent positioning of U.S. law. Moreover, it generated some very tangible consequences that shaped, and continue to shape, Native American agency in the legal narrative on religious freedom. The ruling of the Supreme Court set a precedent for the scope of the Constitution in protecting tribal religion that rendered it almost impossible for
1 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439, 99 L. Ed. 2nd 534, 108 S. Ct. 1319 (1988), http://caselaw.lp.findlaw.com/cgi-
bin/getcase.pl?court=US&vol=485&invol=439 (accessed 10.08.2011), 473 (Brennan, J., dissenting).
2 Lyng v. Northwest Indian CPA, 485 U.S. 439 (1988), hereinafter Lyng in the text.
Natives to seek legal protection for similar instances in the future.3 The controversy of the decision, and the debate it spurred after, makes this legal case a compelling subject for a study on the role of law and judiciaries in wielding power over Native American rights.
1.2 The context for providing scope of the thesis
The Yurok, Karuk4, and Tolowa peoples of Northern California brought a suit to court in order to protect the Chimney Rock area of the Six Rivers National Forest against road construction and forest development.5 It was the tribes’ ancestral homeland and they had been coming to this area for centuries. After the Europeans invaded that part of the North American continent, the indigenous tribes continued their travels to this sacred area, where they practiced rituals such as meditations, vision quests, and ceremonies.6 Fast forward to the 1970’s, when the government (acting through the Forest Service) sought to extract timber from the forest, and proposed the construction of a road. The tribes became seriously concerned for the welfare of their ancestral lands and saw the action as an infringement upon their religious rights. They decided to sue the Forest Service for placing a substantial burden on the tribes’ ability to freely practice their faith, as would be protected by the Free Exercise Clause of the First Amendment.7
The case went through the various levels of the legal system, ending up in the Supreme Court.8 In 1988, after months of hearings, that court came down with its ruling, which went in favor of the Forest Service. Although the majority of the justices acknowledged that the tribes would be limited in their access to the Chimney Rock area, they nevertheless sided with the government and its right to manage its own property. Moreover, the court reasoned that
3‘Precedent’ is a legal concept; a ruling in court by which future decisions must adhere to.
New Oxford American Dictionary, Mac Version 2.1.3., 2005, Apple Inc.
4 The tribe is described as ‘Karok’ in the court documents. However, the tribe itself employs
‘Karuk,’ which I will therefore honor throughout this thesis. See, http://karuk.us
5 Lyng v. Northwest Indian CPA, 485 U.S. 439 (1988).
6 Kristin Carpenter and Amy Bowers, “Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association,” in Indian Law Stories, ed.
Carole Goldberg, Kevin K. Washburn, Philip P. Frickey (New York: Foundation Press, 2011), http://ssrn.com/abstract=2020681 (accessed April 15, 2012), 493.
7 U.S. National Archives and Records Administration, “Bill of Rights Transcript Text,” The Charters of Freedom, http://www.archives.gov/exhibits/charters/bill_of_rights.html (accessed April 27, 2012).
8 Carpenter and Bowers (2011), 505-509.
because the road construction did not actively punish nor prohibit the Native Americans from practicing their faith, the Free Exercise Clause of the U.S. Constitution could not protect their religious rights.910
1.3 The context for providing research questions
By widening the scope we can place the Lyng case within the landscape of the American legal system. The Supreme Court relied on a premise that the religious beliefs and practices of the California tribes were vastly different from other religions, and especially Judeo-Christian ones. If we accept this premise of differing worldviews, we should then look at the relations between the two. The court saw fit to make comparisons between the beliefs of the tribes’ and that of earlier litigants of other faiths, bringing them all into an abstract level of religion, as interpreted under the Constitution. However, acting on that first premise of cosmological difference, we are impelled to investigate a second one. In the matter of Lyng, indigeneity is the focal point and therefore subject to dynamics of authority and legitimacy between the various actors. If we take on a second premise, that these relations play important role in areas of law beyond one simple court case, then we need to investigate the role of Native American issues in an Euro-American-based legal system.
My reasoning for choosing the Supreme Court is both personal and academic, although they are in a manner one and the same. I was lucky enough to spend a semester in the United States, studying in the field of Native American studies, at the Montana State University. One class in particular caught my interest. It was called Federal Indian Policy and Law, and provided me with a whole new area of knowledge on historical-legal issues pertaining to Native American tribes. The role of the Supreme Court stood out to me as we studied some of the most vital cases, from colonial beginnings to present day. It struck me how much power these few justices had over the entire indigenous population in the country, and how much the outcome was dependant upon the cultural, religious, and political views of one small group of people. Although these societal preconceptions exist in the other branches of government, I found it both fascinating and disheartening the role the Supreme Court has played for the past
9 Lyng v. Northwest Indian CPA, 485 U.S. 439 (1988).
10 The First Amendment to the U.S. Constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof (…)"
(emphasis added).
200 years in challenging and establishing the laws and principles of minority to majority, indigenous to conqueror, Native to non-Native, relations.
Native American tribes are continuously dependant upon the court, as a legal entity and as real-life actors striving to maintain or regain their rights. The master’s program in Indigenous Studies at the University of Tromsø has allowed me to further broaden my horizons, and investigate the contemporary outcomes of historical processes. A critical view of institutionalized authorities and legitimacies taken for granted are important parts of my education, which I strive to bring with me into this project. As an official institution, the Supreme Court of the United States is a well-established and respected body of government.
Yet as the pendulum of political moods swings across, so does naturally the composition of justices and their views. Since the U.S. legal system derives from common law, wherein customs and judicial principles outlines much of the policy, decisions made by the courts not only determines the outcome of one case, but set precedents for years, decades, or centuries to come. The Marshall Trilogy of the early 1800s is such an example, as the rulings by the Supreme Court on the rights of tribes to hold and sell land put down some of the most central concepts of the tribal-to-federal relationship, still in place to date.11 These landmark cases have continued to carry weight throughout decades of shifting political climates. Thereby, they have served as both a detriment and benefit to the tribes, highlighting the power of the Supreme Court.
Lyng v. Northwest Indian Cemetery Protective Association stands out because the Supreme Court came down with a ruling that at the time seemed to go in the opposite direction of other federal policies and interests.12 It was quite a devastating blow to any future attempts by Natives to find judicial protection of religious rights, establishing its place of infamy in the legal field. As mentioned above, the case has not been overturned, and although only twenty- four years old it is already among the most-cited cases in Federal Indian Law. 13
11 Getches, Wilkinson, and Williams, Jr. (2005), 63-71.
12 See, for instance, Brian E. Brown, Religion, Law, and the Land – Native Americans and the Judicial Interpretation of Sacred Land (Westport, CT: Greenwood Press, 1999), 119-170.
13 Matthew L.M. Fletcher, “Top 25 Most-Used and Most Cited Indian Law Supreme Court Cases,” Turtle Talk, August 9 2011, http://turtletalk.wordpress.com/2011/08/09/top-25-most- used-and-most-cited-indian-law-supreme-court-cases/ (accessed October 17, 2011).
To the public, the field of law is often perceived as a relatively objective arena, where neutrality, facts, and fairness are given considerable weight. In a country as multicultural as the United States it is vital that the courts represent all citizens and do not favor one ethnic group or class above the others. Yet, it is too easy with this perception to reify the court; to look at the law as a ‘thing’ itself, separated from the people who make it, who interpret it, and who must abide by it. Likewise, it is too easy to separate the law from the historical circumstances that formed this body, and the cultural and societal relations of those in charge of representing it. My aim is therefore to highlight the American court system as an arena that despite serving all the different ethnic, cultural, and religious groups in the United States, still makes comparisons and evaluations which place different worldviews in different, and thus sometimes unequal, positions. Although the nine justices of the Supreme Court are agents of a larger body of law, they are active in seeking out their interpretations of it, necessitating one worldview above another. This becomes especially tangible when presented with cases of Indian Law, and where some of the actors in the courtroom not only differ in religious beliefs, but also in cultural and societal, creating a divide much larger to overcome on both parts.
It has led to a large number of scholarly works produced on Lyng. Much has been said of the case as it pertains to other court decisions on religious freedom.14 One might ask if there is a fresh angle to be found on the topic. At the same time, because of its importance there are numerous ways to analyze and further examine how Lyng came to be and what came out of it.
Here I believe my scholarly background of multidisciplinary foci can help me create a space for writing on the topic which has not yet been covered. Although my main discussion centers on a legal case and the role of law, my experiences in anthropology and history will help me look at the subject from different perspectives and create a larger context for the role of law in Native America. This being a thesis of an interdisciplinary student, my approach will thus combine elements of several academic teachings to provide a broader context of Native American religion in the law. Moreover, this project is an indigenous one, not in its author but both its theoretical background but its empirical focus.
14 See, for instance, Brown (1999), Susan Staiger Gooding, “At the Boundaries of Religious Identity: Native American Religions and American Legal Culture,” in Numen, vol. 43, no. 2 (1996).
1.4 Research Questions
Using the Supreme Court decision as my starting point, I am then able to investigate a number of relating issues, yet still tie them together under the umbrella of colonization, the role of law, and indigenous worldviews. My overarching research question is as follows:
Is there a space for Native American agency and decolonization in the field of law?
In order to answer this question more precisely, I have some subordinated questions as well, which are:
How does the Lyng Supreme Court decision fit into the body of Federal Indian Law?
How do issues of power and difference play out in the courtroom?
How did the outcome of Lyng affect the narrative indigenous rights in the United States?
What does Lyng say about the postcolonial landscape of American legality?
These questions will hopefully allow me to draw my material together into a succinct analysis of the case and of the larger issues surrounding it. My ultimate goal is to bring the discussion to a conclusion on where Native Americans stand as subjects of U.S. law. The three underlying questions would guide me to such a point. The first, by placing Lyng in a larger context, will allow me to show my readers its historical connections and contemporary standing. The second question will bring up a discussion of how Native American issues are argued in a courtroom, and how indigeneity plays a vital role in the outcome of a decision such as Lyng. This will lead into a search for the consequences of it, which will be guided by my third question on subsequent events and processes. Here I will attempt at highlighting the road after Lyng, taken by both Native activists and the court. This will finally lead me to my last question on the role of postcoloniality in U.S. law, which can be answered by combining all the previous information gathered into an analysis on the relationship between Native Americans and the government, represented in this case by the judiciary, in a contemporary context.
1.5 Highlighting the theoretical tools and concepts 1.5.1 Postcolonial Theory
The overarching theory at play here is that of postcoloniality, of looking at indigenous perspectives in a context that emphasize and critique the colonial heritage.15 This theory, originally of a literary focus, has spanned to be included in many various disciplines that are concerned with the modern-day experiences of colonized peoples. A core of this theory is the attempt to find new modes of analysis and expression removed from the structures and ideas based in Western academia.16 It might be a paradox, then, this project’s attempt at describing an indigenous issue from an analytical perspective fully founded on scientific methods and theories. Indigenous scholars occupied with postcolonial theory have problematized this aspect as well.17 Jace Weaver laments that ‘the postcolonial moment” has not arrived as long as indigenous peoples are denied their sovereignty, and Elizabeth Cook-Lyn critiques the discipline of Native American studies for failing to escape its colonial structures.18 On the other hand the last author also emphasizes how important it is to study indigeneity and sovereignty in academia.19
There are obvious problems and paradoxes inherent in the theory of postcolonial thinking, and my positioning in this field, as a student of Western academia, needs to be questioned.
Yet, there are valuable strains of thinking stemming from this discourse on the aftermath of colonialism. If bearing in mind its pitfalls, it can be useful to employ postcolonial ideas that bring to light just how much knowledge production is influenced by scientific, positivistic ideals born out of a colonial heritage. As such, a postcolonial framing of the Native American rights narrative can provide new aspects on the role of law and legal texts in indigenous lives.
15 Anna Green and Kathleen Troup, The Houses of History: A Critical Reader in Twentieth- Century History and Theory (Manchester University Press, 1999), chapter 11.
16 Green and Troup (1999), 283.
17 Jace Weaver, “Indigenousness and Indigeneity,” in A Companion to Postcolonial Studies, ed. Henry Schwartz and Sangeeta Ray (Oxford: Blackwell Publishers Ltd, 2000), ch. 10.
18 Weaver, 233; Elizabeth Cook-Lyn, “Who Stole Native American Studies,” in Wicazo Sa Review, Vol. 12, No. 1 (1997), 25,
http://www4.uwm.edu/letsci/ais/pdf/whostole_cooklynn.pdf (accessed Nov 1, 2011)
19 Cook-Lyn (1997), 21.
1.5.2 Important concepts
The notion of ‘knowledge’ is an important one when talking about how different peoples view the world. Coming back to postcolonial thinking, via Orientalism, Stuart Hall details the dichotomies created by European imperialism.20 His notion of the center versus the periphery is an important tool for exposing ‘the other’ as a Western construction. Moreover, a postcolonial interpretation of the subject at hand puts much emphasis on the role of knowledge in both upholding and dismantling power. This ties together with this project’s tackling of knowledge. I wish to deconstruct the kind of knowledge embedded in Anglo- American legal thinking, as well as how this is in opposition to indigenous presentations and representations of knowledge. In indigenous-to-majority relations this often turns into a question of legitimacy and power: who is vested with the authority to determine valuable information? How is some forms or pieces of knowledge considered legitimate and others not?
I also intend to employ “agency” as a social motive. Sherry B. Ortner writes of practice theory, a strain of anthropological thinking that tries to bridge the structures of society with the actions of the individuals.21 Semantically speaking, agency embodies the human ability to be in control of one’s behavior and intentions and act on them. Although an individual trait, agency is formed by cultural and societal interactions as well. These relations bring with them issues of power and inequality, and these elements play out when social actors carry out their agency.22 Bringing this back to my case study, agency is important as a concept for examining how Native Americans make use of their active social roles to participate and shape legal discourses. If keeping in mind that when different social actors are brought to a project – such as a legal proceeding –, each individual’s role will be determined by some larger societal structures. The level of mastering a discourse is dependant upon knowledge of the formal rules and norms present in the court. The question I wish to find an answer to is what kind of agency Native Americans act out in a legal setting such as the ‘Lyng’ case, and what kinds of power relations exists between themselves and their (juridical) opponents.
20 Stuart Hall, “The West and the Rest: Discourse and Power,” in Modernity: An Introduction to Modern Societies, eds. S. Hall, D. Held, D. Hubert, and K. Thompson (Malden, MA:
Blackwell Publishers Ltd., 1996).
21 Sherry B. Ortner, Anthropology and Social Theory: Culture, Power, and the Acting Subject (London: Duke University Press, 2006).
22 Ortner, 130-131.
1.5.3 An introduction to basic terms
The Yurok, the Karok, and the Tolowa people of Northern California have distinct names for their tribes. For instance, Yurok means … For non-native people, however, the Yurok are more likely to be called “Native Americans,” “American Indians,” simply “Indians,” or in some unfortunate cases “red Indians.” The Yurok identify themselves as ‘Olekwo’l,’ meaning
“Persons.” The state of California and the United States government identify them as the Yurok Tribe, a federally recognized American Indian tribe. The general, international public might name them “Indigenous Peoples.” How to address members of the Yurok, or other American Indian tribes, is an important question. It has been subject to much debate in the Untied States, as an important part of the general discourse on Native American issues. The most common term, Indian, has its origin in the European arrogance of Christopher Columbus, who believed he had reached India when he met the indigenous people on the American continent. As such, the name and its legacy have come to symbolize the colonial history between Europeans and Native Americans.
“Indian” is much more than a factual description of a people. It carries immense connotations, subject to changes in historical moods and political climates. Most often it has been used derogatory, in signaling the vast difference between, and inferiority to, the European settlers.
As such, many feel that the term should be abandoned. On the other hand, many Natives see the benefit of reclaiming the word as a way of taking control of a discourse so heavily created by and for non-Natives. For the past half-century or so, the term “Native American” has been most commonly used. It has its disadvantages as well, since some U.S. citizens feel they ought to be able to call themselves the same, as natives to the country. However, this is such a widespread term that I feel confident in employing it without great offense.23 Using “Indian”
leads me to shakier ground, since I am not a native person reclaiming the word. On the other hand, in much of the material discussed throughout this thesis, the term is used widely. Legal matters pertaining to the tribes fall under the umbrella category of Federal Indian Law and therefore the term is often used, always with a capital “I.” When discussing a specific people, I find it best to employ the names they have given themselves, or at least are known as officially. Moreover, I will vary between denoting their groupings as “tribes” or “nations.”
23 Walter C. Fleming’s The Complete Idiot’s Guide to Native American History (Indianapolis, IN: Alpha Books, 2003) has a great basic discussion of the various names, in chapter 1; also, Clara Sue Kidwell, Homer Noley, and George E. “Tink” Tinker, A Native American Theology (New York: Orbis Books, 2001), xi.
The latter term has risen in popularity lately. It is often associated with politically independent areas and groups, and many tribes feel that it better signals the self-determination they are trying to achieve.
It is also important to mention some of the terms I will use when discussing non-Native people of the United States. In contemporary matters they are simply Americans, or U.S.
citizens. However, in the context of this thesis it is important to denote their background when discussing historical issues. Their cultural, social, and political background has their origins too, and it is vital to equalize the differences between, for instance, Yurok and British cultural traditions. While “Euro-American” is one of the most common names, I will often denote legal matters as of “Anglo-American” origin, as much of the U.S. legal system is based on British common law. When addressing religious matters, it is somewhat insufficient to label the majority views as Judeo-Christian; however, it is done here for sake of space. Likewise, Native American religions is a term with many lacking and generalizing attributes, however, this will be discussed more extensively in chapter 3, as it is an important part of the religious rights discourse in the Untied States.
1.6 Methodological points and ethical concerns
As readers have probably discovered by now, this project is largely based on analysis of written documents. During the research process, some interviews were conducted with tribal members from Western Montana. The ‘Lyng’ case itself was not mentioned, but in all of my interviews we discussed general concerns of the tribes on the protection of knowledge, on religious freedom, and on tribal integrity. These conversations have shaped the process of the thesis, and my thinking process. However, as the nature of the thesis has changed since its initial design, I will not apply the interviews.
My analysis will be purely qualitative and based on written research. Primary sources include the official court documents of Lyng v. Northwest Indian Cemetery Protective Association, and interviews and news articles relaying its information. The secondary sources consist of scholarly and activist books, articles and opinions on the ‘Lyng’ case itself and on issues relating to the discourse on indigeneity and religious freedom in the United States. In choosing my material I have strived to be selective. First and foremost I am required to rely on a number of sources written by legal institution, such as official court documents.
However, I have tried to supplement these with as many indigenous scholars as possible. I do think it is a highly necessary and valuable determination as a student of Indigenous Studies.
The analysis of a legal case follow a certain pattern, and I have used this outline as a skeleton but fleshed out the analysis by adding information other than the legal text, or other case law, itself. This method, called “briefing” is structured as such:24
1. Identification of the case: with its full name and citation.
2. The facts of the case: the origins of the dispute and the arguments of both the plaintiff and the defendant. Here, one can also include any relevant decisions made by a lower court.
3. The issue at hand: the central matter of the dispute, in the form of a question before the court.
4. The decision: whether the court answered this question “yes” or “no.”
5. The reasoning: how the court came to its conclusion, and possibly what statutory law or precedents it relied on.
Since my thesis is not strictly a legal brief, or even a legal analysis, I will not follow this to a tee. Yet, such an outline is helpful in singling out the most important facts of a complex issue and structuring them in comprehensible manner.
I have briefly touched upon the issue of integrity in relation to informants, but there are some other ethical concerns that need to be addressed as well. When conducting my interviews with the tribal members, I openly stated my interest in the topic, the reasons why, and my concerns with being a non-indigenous person writing about indigenous topics and peoples. I always try to be aware of my role as an outsider in this context. I have a genuine interest in and passion for the topics I am discussing, and I do wish to present them with the integrity they deserve.
Despite this, there is no denying that I am a European; a Westerner; a white person whose upbringing and educational background is grounded in a culture that differs from that of many indigenous experiences. I can advocate for postcolonial thinking and indigenous methodologies, but I cannot write as an indigenous person. My analysis will necessarily be informed by the scientific ideals of Western academia. Yet I hope that by keeping an honest
24 Getches, Wilkinson, and Williams, Jr. (2005), chapter 1; “How to Brief Cases and Analyze Case Problems,” Cengage Learning
http://academic.cengage.com/resource_uploads/downloads/0324654553_91282.pdf (accessed June 10, 2012).
and open outlook I will still be able to provide a valuable contribution to these issues. My aim is to present these topics fairly, honestly, and concretely. Although I wish to add something to the general discussion of legal cultures and indigeneity, I realize that I have limited time, space, and knowledge to do so.
I am a non-indigenous person. Moreover, I grew up in and got my education in one of the richest welfare-societies in the world. If I were not aware of my privileged background before entering this field of study I certainly am now. As such, this thesis has opened my eyes not only to the world of law and spirituality and of postcolonial discourses. My position as an academic student, from and in a Western, European country is revealed by the manner in which I pose questions, by how I relate to differing worldviews and beliefs, and by how I present and represent those involved in this narrative. My cultural, political and religious points of views will necessarily play a part in the way I situate myself. On the other hand, for all my difference from the indigenous peoples whose story I will relay, there are many similarities as well, and especially one in particular I wish to mention.
I grew up on a farm. I lived there until I was 18, and have since then spent most of my summers, Christmases, and other holidays there. My dad runs it, as his dad did before him, and his dad again before that. In fact, I belong to the nineteenth generation living on this piece of land. I could say property, but that would not cover what this place is or what it means to me. I know that girls like me have walked the same paths as I have one hundred years ago. I know that men like my father have harvested corn on the same acres four hundred years ago.
To me, imagining these daily events signifies the connection to my ancestors, my heritage, in a way I know many others cannot experience. However, reading and hearing Native people speak of their forefathers and their land that has always been there under their feet, I see my story and myself. I see my passion for my home place and my connection to the land my family has lived and breathed on for centuries. I find that I can channel some of that passion and spirit into this thesis, and know that although I am far removed from their stories there are still values which we all hold sacred.
It is not my wish nor goal to achieve total objectivity or neutrality, by presenting both sides of the argument and leaving the reader to decide for him or herself which story they believe. My goal is to convince my readers that what I have to say has truth. However, it is my truth and no one else’s. It is up to the reader to ascertain whether the narrative I present is backed by
facts and arguments which compel them to feel something for the story. Whether that is anger, frustration, sympathy, or apathy is up to you but I hope that what I am about to present will make a contribution.
1.7 A chapter outline
Having thus outlined the scope and purpose of my thesis, I will turn to the thick descriptions of my research material and analyses. The second chapter is devoted to the overarching theories I will employ throughout this text. I will start with a discussion on the origins of postcolonial theory and present some of the criticism raised against it. Then I will include notions of indigeneity as it relates to the postcolonial project and briefly discuss how it can be of purpose when addressing Native American issues. I will also draw some connections to the role of law in such a context. The second half of this chapter concerns itself with Federal Indian Law, both as a theory and historical process. As such, I will spend some time outlining the founding principles, which informs this body of knowledge, and then give a quick overview of the role of law throughout U.S. history, as it pertains to Native Americans.
This should set the stage for the next chapter, in which I will go into the historical and legal contexts more in depth. Chapter 3 will provide the reader with more extensive knowledge of Native Americans as a legal entity within the nation-state. Although there is no room for a full historical analysis, it is vital to the understanding of Federal Indian Law that the reader is aware of some of historical and contemporary conditions for the case study. Therefore this chapter also includes a discussion of the religious views of both Native Americans and a mainstream America. This is an important aspect of the project, and as much detail as necessary yet relevant is outlined, but for the sake of space there has been made some generalizations on both sides. However, the nuances will hopefully remain clear. Finally, the chapter tackles the case study itself – the Supreme Court decision called Lyng, and details its initial circumstances as well as the journey through the legal system.
The fourth chapter will dive into an analysis of the Lyng case and discuss at length all the aspects of the decision. This includes an evaluation of the logic employed by the court, and the kinds of precedents it relied on. Moreover, it will examine the dissenting opinion and how it creates a contrast to the majority. The chapter will also place much weight on an extensive interpretation of the language used by the court. By looking at themes such as difference, the
role of the sacred, authority, and notions of land, we can place the legal decision within the framework of postcolonial thinking.
After this I will move on to the fifth chapter, which although also providing analysis, will rather consider some longer lines of judicial treatment of religious rights. By employing the material presented in the preceding chapters I will supply some much needed context for Lyng so as to place it within the framework of both Federal Indian Law and a legal rights narrative.
It will then turn to the relationship between Native Americans and the courts, and look at some of the developments taking place after the 1988 Supreme Court decision. The chapter will conclude with a discussion on the current status of a postcolonial tribal rights narrative.
Finally, I will end the thesis with a short chapter in order to provide the reader with some conclusive remarks. It will provide a space for reflections on the thesis itself and seek to draw the different themes and analysis made throughout this text together. As such, it can provide a complete narrative for the reader.
Chapter 2: A theoretical approach to Lyng; overarching theories and histories.
Before I start my analysis of Lyng v. Northwest Indian Cemetery Protective Association, it is important to shed some light on the theoretical aspects of the thesis and how they will service this case study. I derive my more abstract material from two academic fields and will seek to combine them in the analysis for the purpose of giving my empirical examples weight and context. The first I will present is Postcolonial Theory, as briefly introduced in the previous chapter. I will discuss some basic foundation blocks as well as problematic points and then give a thicker description of the field as it pertains to indigenous issues. This will hopefully give the reader an understanding of its relevance to my exact topic. In the second half of this chapter I will move onto a discussion on the merits of Federal Indian Law. This body of theories is the umbrella under which a legal case such as Lyng falls, and it is important to provide the reader with knowledge of the field’s roots, principles, and usage. The demarcation of Federal Indian Law, as well as postcolonial theory, will hopefully provide a sufficient framework for the case study and bring them together in a harmonious contribution to the abstract levels of this thesis.
2.1 Postcolonial Theory
2.1.1 Overview of theoretical field
Postcolonial theory concerns itself with the effects of colonization, to put it shortly. The
‘post’ does not imply that our contemporary society is freed from the force of it. Rather, because the period of physical European occupation of foreign nations is mostly over, a new paradigm of analysis and critical thought is opening up in “the colonial aftermath.”25 Although political and economic upheaval have dominated this period, postcolonial theory concerns itself mostly with a critique of Western ideas, ideologies, and knowledge, and the ways in which these have claimed a narrative over the subjugated colonies.
25 Leela Gandhi, Postcolonial Theory: A Critical Introduction, (New York: Columbia University Press, 1998), 5.
Such strains of thought can be traced back to the poststructuralist climate of the 1970s.
Edward Said’s notion of the West and the ‘Other’ in his publication “Orientalism” in 1978 is often considered a pillar of postcolonial theory.26 He was joined by philosophers, physiatrists, and other theoretical thinkers in creating new literary works on the experiences of colonization. The development of the new theory followed in the wake of decolonization efforts by populations throughout the world rebelling against their former oppressors. Parts of this surge of literary prose came from authors standing in the middle of these battles.27 They were able to draw attention to those struggling to free themselves from subjugation. However, it is important to note that postcolonial theory found its institutional footing in the previous imperial states such as Great Britain and the United States.28 This implicates the focus of the theory as one that strives to free First World nations and discourses of their colonial legacies – an often-problematic endeavor, which I will return to below.
What Said did for the postcolonial project should nevertheless not be diminished. By pointing out the hierarchical structure of knowledge production, he was able to demonstrate the importance of the ideological motive for and support of Western dominance. Power is not only found in military strength or control of resources but in how a society is informed to think of others, and how they are presented, or represented, to the society.29 In other words, there exists a colonial, or Oriental, discourse; a system of meaning wherein the ruling European class have established the perceptions of themselves and their colonized people, and of the relation between these two, which dominates above others. The charge Said made against this authority thus implicated Western academia and its role in upholding control through theoretical writing. Knowledge becomes embedded with such powers to the point that, according to Said, “European knowledge is colonialism.”30
The postcolonial project is an attempt at deconstructing this knowledge system wherein the voices of colonized peoples are reduced to images of representations formed by Western
26 Gandhi (1998), 23-25.
27 Gandhi (1998), 6 (on Albert Memmi).
28 Jenny Sharpe, “Postcolonial Studies in the House of US Multiculturalism,” in A Companion to Postcolonial Studies, ed.s Henry Schwartz and Sangeeta Ray (Oxford: Blackwell
Publishers, 2000), 113-114.
29 Gandhi (1998), 64-65, 74.
30 Henry Schwartz, “Mission Impossible: Introducing Postcolonial Studies in the US
Academy,” in A Companion to Postcolonial Studies, ed.s Henry Schwartz and Sangeeta Ray (Oxford: Blackwell Publishers, 2000), 4.
mindscapes. This deconstruction, however, is a complex task beyond the goal of reversing the hierarchies of power. First of all it is twofold in that it seeks to dismantle the seemingly scientific and positivistic composition of Western knowledge systems, and to lift up those systems often referred to as “subjugated knowledges.” 31 Second, there are those who claim that colonialist influences cannot be shed, and that the project of postcolonial theory is to recover from past atrocities through remembrance. Although many might wish for a clean break with colonial traditions and a pure reversal of power, it is necessary for moving forward that the historical impact be given (new) light. One can compare it to that of recovery from a traumatic event, by which those affected need to come to terms with what has happened and how their lives will always be informed by it. That is of course not to say that those affected will be so forever, but rather that it is utopian to believe that a simple refusal to speak of the past again will erase it.
2.1.2 Indigeneity and postcolonial theory
If we look at the experiences of Native Americans, many of the postcolonial goals apply to their histories. Since the arrival of Columbus in 1492, they have been subjugated physically, physiologically, and emotionally to the authority of others. Although indigenous to the land, the long-term military dominance of the European conquerors enabled an inversion, by which the indigenous became the Other. As such, there is a long and excruciating history in the United States of colonial ideas and images of the Indian. “Barbarians,” “uncivilized,” and
“savages” were common descriptors of the population of the Americas in the early days of colonization.32 These creations have proved difficult to erase and have gone from building knowledge to defining it. Part of the decolonization project for Native Americans lies then in exposing these racist terms for what they are – constructions – and strive to demand the power to define themselves.
Such a task is made the more difficult by the unique structure of the United States as a former colony. As opposed to, for example, India, where the British were eventually forced out, the colonial conquerors of Native Americans never left. That is of course one of the defining characteristics of indigenous peoples: a population or several who continue to live under the rule of a foreign power, despite defining themselves as sovereign before and during such a
31 Gandhi (1998), 52-53.
32 Getches, Wilkinson, and Williams, Jr. (2005), 48-51.
reign.33 This power dynamic is often called “internal colonization,” describing the marginalization of a minority by the dominant group. However, in the United States it also denotes the experiences of immigrants, who take up a large portion of the multicultural nation-state. It is important to the integrity of the postcolonial project to account for “uneven historical formations and dispersed geographical locals, ” including immigrants and minority groups.34
Nevertheless, the extraordinary conditions making up an indigenous group, such as Native Americans, has created unique histories that give them a space in the discourse of their own.
Here, the “post” part of postcolonialism becomes vital. For indigenous peoples in settler states, it is difficult to discuss the effects of Western imperialism on their societies as reflections of the past. Those with authority to define and rule still benefit from the colonial past, and they bring this privilege into their contemporary narratives.35 The U.S. courts provide a telling example. The institutions are based on European customs and rules, established at a point in history when Native Americans were legally defined as “savages.”
Yet, they continue to make use of language stemming from such a worldview, despite the epoch of origin.
2.1.3 The problematic nature of postcolonial theory
The contemporary situation of settler nations such as the United States reveals itself open to postcolonial discussion. Especially for Native Americans, there is much to be said for the dynamics of settler-indigenous in a country where the ruling elite still benefits from colonialism. Yet, critics of postcolonialism charge that the academic discourse on these issues are still permeated by Western-based ideas and notions. Elizabeth Cook-Lyn offers a critique of the development of Native American studies as a scholarly pursuit, for its failure to revolutionize perceptions of indigenous peoples in the United States.36 According to her, this
33 Benjamin J. Richardson, Shin Imai, and Kent McNeil, “Indigenous Peoples and the Law – Historical, Comparative and Contextual Issues,” in Indigenous Peoples and the Law:
Comparative and Critical Perspectives, ed.s Richardson, Imai, and McNeil (Oxford: Hart Publishing, 2009), 13.
34 Sharpe (2000), 118.
35 Jace Weaver, “Indigenousness and Indigeneity,” in A Companion to Postcolonial Studies, ed.s Henry Schwartz and Sangeeta Ray (Oxford: Blackwell Publishers, 2000), 223.
36 Elizabeth Cook-Lyn, “Who Stole Native American Studies,” in Wicazo Sa Review, Vol. 12, No. 1 (1997), 25.
stems from a lack of Native scholars in the field, or rather the ability of Native scholars and intellectuals to establish their own discourse.
This assessment is in accordance with much of what has been said of postcolonial theory on a grander scale. Because it concerns itself mostly with a critique of Western knowledge, of Western academia, and of Western intellectual history, it can consequently be viewed as a discipline made for intellectuals, seeking to distance themselves from their predecessors.
Therein lies the contradiction of Western academia, which seeks to denounce its imperial history and bring marginalized voices into the field by means of a theory developed by and for academics. Commentators point out the distance between those writing about topics of postcolonialism and those ‘acting’ it out. There is, in other words, still a gap between author and subject. Postcolonial theory is born out of Western, academic discourses, which continue to uphold authoritative positions in the world of academia.37 This place of centrality is often in contrast with the lives led by the objects of the pursuit, signifying that people continue to live on the margins of society, as well as of academic, or intellectual, power.
Such criticism is important to highlight, although it might appear to give the theory a lethal blow. A few point are then important to counter with. First of all, this criticism overlooks all the voices coming from “subjugated” knowledges that have contributed to the creation and development of postcolonial theory. It was Edward Said, a Palestinian-American, who created its catalyst. Other defining figures include Gayatri Spivak, an Indian professor, who coined some of the most important terms and continues to challenge the internal structures of the field.38 But founding figures aside, numerous of writers and scholars from decolonized nations have contributed to postcolonial theories, signaling that the vitality of the project is dependant upon such diversity. Second, denouncing postcolonial projects as simply Western and therefore of no value to decolonization efforts, is to overlook another aspect of its own beginnings. The project came about precisely to expose academic knowledge production as a construct, and more specifically, the writing of colonial times as a tool of oppression and authority. By doing so, postcolonial discussions are not only producing new forms of knowledge but also new tools for exposing truths and establishments as constructed worldviews, with roots in discriminatory beliefs and ideas.
37 Gandhi (1998), 55.
38 Gandhi (1998), 43, 55.
In indigenous circles there are those who wish to forgo all traces of Western-based approaches in creating and communicating knowledge. Dynamics and rules of academia must be discarded for a peoples’ own customs and methods. Critics coming from a Native American point of view lament the failure of their own academic field to support the long- term goals of the people, namely sovereignty. True self-determination is impossible as long as the tribes are educated by and for a system with origins in their oppression.39 On the other hand, the reality of the situation makes it difficult to implement such a radical break. As Native Americans are still fighting for their right to dictate the terms of their status in the U.S.
(legal and otherwise), postcolonial theory “represents a response to a genuine need.”40 It can thus be employed by Native activists, intellectuals, and academics, to expose Western worldviews and knowledge hierarchies and find new ways of addressing their own. Beyond this diversity, it seems necessary that in order to keep postcolonial discourses ‘in line’ it is important that those writing in the field dare to oppose the Western institutions home to colonial narratives. This often becomes a challenge centered on questions of loyalty, integrity, and co-option. Gandhi emphasizes the political involvement of academics in this context and the need for postcolonial intellectuals who dare act against academic institutions and build bridges between those and peoples involved in decolonization efforts.41
2.1.4 Postcoloniality and the law
Although not a main goal of postcolonial theory, the law is nonetheless an interesting heir to the colonial heritage and worthy subject of study. The origins of U.S. legal theory will be more thoroughly described underneath, but some context is useful to provide here. The uniqueness of indigenous groups lies with the forms of occupation. Colonies of settlement are defined by a long-term presence of a European, dominant community and the subjugation and removal of the people indigenous to the land. The subversion from majority to minority was an important part of the colonial project in addition to making the settlers “native” to the area so as to legitimize their occupation of land already inhabited. The construction of “terra nullius” was such a myth, created to stimulate the notion that the indigenous did not in fact occupy the land. The “terra,” or earth, was empty. The claim was necessary, for neither the Americas nor Australia was invaded by full military force. “Empty land can be settled, but
39 Weaver (2000), 227-232; Cook-Lyn (1997), 19.
40 Dirlik, quoted in Weaver (2000), 222.
41 Gandhi (1998), 58-59, 63.
occupied land can only be invaded.”42 The colonizers claimed the land they settled was uncultivated and without use, thereby justifying the “simple” takeover and displacement of the indigenous peoples.
However, this conflicting status of the colonial project in settler-states meant that the various indigenous groups were neither military invaded or conquered, nor where they accepted or assimilated into the new, European-derived societies. They continued to denote an anomalous legal status as the colonial powers carried out policies of armed conflicts and displacement of land along while simultaneously they signed treaties and respected some inherent rights of the indigenous population. Although their presence became a growing problem against rising immigration, the native peoples were given some prerogatives from the start, such as (narrow) rights to occupy their land. Their inclusion into the legal discourse meant onwards they could not be ignored. However, the law could be used as a tool to suppress narrative that challenges the legitimacy of the American conquest. As such, the judiciary becomes a dangerous space for the indigenous, since the control of lies entirely in the hands of their colonizers.43
Moreover, Native Americans have for most of post-contact history been subjected to the definitions of others. As such, the legitimacy of their own beliefs and practices has always been dependant upon recognition by their colonial oppressors. One road to decolonization is therefore the disruption of majority authority. For most indigenous populations in settler- colonies, the physical and intellectual control over land and property has been one of the areas with the most conflict. In many ways, rights to land is inherent in the right to govern oneself, and one that is especially vital for groups still residing on their historical land, but as member of a nation in which the colonizers still reside and control. As opposed to former colonies on the African and Asian continent, resistance and reforms has not been possible for indigenous peoples in settler-colonies. There, decolonization of physical, spiritual, and legal property has to take place in a space still dominated by European, colonial histories, although modernized.
The challenge for Native Americans and other indigenous groups alike is therefore to achieve self-determination and separate from the colonial traditions of the legal field.
42 Anna Johnston and Alan Lawson, “Settler Colonies,” in A Companion to Postcolonial Studies, ed.s Henry Schwartz and Sangeeta Ray (Oxford: Blackwell Publishers, 2000), 364.
43 Robert A. Williams, Jr., “Documents of Barbarism: The Contemporary Legacy of European Racism and Colonialism in the Narrative Traditions of Federal Indian Law,” in Arizona Law Review, vol. 31 (1989), http://heinonline.org (Accessed March 9, 2012), 261.
